I was approved to export three of the five swords for which I requested the permit. The reason for denying a permit for the other two was, as I had described in the previous thread, is the FWS's position that in order to be granted a permit to "re-export" and item, you must establish that it was legally imported. Those two swords were ones that I bought from dealers overseas and had sent to me in the U.S., while the other three were bought by me within the U.S.
I am going to contest the denial (hey, I'm a lawyer - its what I do), because besides being beyond their authority under the statute, it is just plain ludicrous.
1) I applied for an
export permit, not a "re-export" permit. The swords are mine, reside permenantly (at least for the known future) in the United States, and they are leaving the country temporarily for a non-commercial purpose. So I am not "re-exporting" anything by any reasonable definition of the term.
2) Not that I am going to point this out to the FWS, but the other three must have been imported into the U.S. at some point -- they are originally from Southeast Asia! Why is it that one only has to established that items that were brought into the U.S. by the applicant himself were legally imported? This is what we call an arbitrary application of the regulations, which is not permitted under the Administrative Procedure Act.
3) If their internal procedure were logically applied, in other words by requiring that the piece have been "legally" imported, period, without just requiring that the applicant prove it for those swords she/he imported themselves, there would be no way to "legally" do anything with one of these swords, ever.
4) This arbitrary application of their internal procedures just invites laundering of smuggled items. I mean, if you can get out of having to show legal importation just by telling them the thing was bought in the U.S., all one has to do is made a sale to some, then have them apply for the permit, and voila' it becomes legitimate what otherwise would have been "illegal" in their view. I think they are just too lazy or busy to bother to trace backwards through a chain of owners back to the first importation. Like I said, its all arbitrary.
5) They persist in saying that one needs an
exception to the restrictions imposed by the Endangerd Species Act in order to be given a permit for an antique item. However, something extremely rare in U.S. statutes, the law very clearly states that antiques
are not subject to the restrictions of the Act, which means that, well, they are not subject to them. They don't fall under the Endangered Species Act, and the Act does not (and cannot) provide any legal basis for imposing any restrictions on what you do with them. If they are beyond the reach of the law, it cannot be "illegal" to do anything with them that would have been prohibited if they were not antiques (and so, specifically, they were "illegally" imported, even if it was done without a permit). Failing to abide by an agency's regulations (or rather in this case their internal procedures because the regulations don't require what they want, either) is not a violation of any law. It might annoy them, and maybe they can sanction or fine you some way, but it's not illegal.
I just had to vent, but I though you would be interested in how an actual permit application was handled by the U.S. authorities. Plus, it gave me a chance to outline my appeal brief.
